Wight v Wight

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Forte and Mottley, JJ.A.)
• Judgment Date: 30 November 2007
• Court: Court of Appeal (Cayman Islands)
• Date: 30 November 2007

Court of Appeal

(Zacca, P., Forte and Mottley, JJ.A.)

WIGHT

and

WIGHT

N. Mostyn, Q.C. and M.J. Bradley for the appellant;

A.J. Jones, Q.C. and W. O”Connor for the respondent.

Cases cited:

(1) Charman v. CharmanUNK(2007), 9 ITELR 913; [2007] 2 F.C.R. 217; [2007] FLR 1246; [2007] EWCA Civ 503, dicta of Potter, P. applied.

(2) Cowan v. Cowan, [2002] Fam. 97; [2001] 3 W.L.R. 684; [2001] 2 F.C.R. 331; [2001] 2 FLR 192; [2001] EWCA Civ 679, referred to.

(3) Doak v. Doak, 2002 CILR 224, applied.

(4) H v. H (Financial Provision: Special Contributions), [2002] 2 FLR 1021, applied.

(5) L v. L (Financial Provision: Contributions), [2002] 2 F.C.R. 413; [2002] 1 FLR 642, referred to.

(6) Lambert v. Lambert, [2003] Fam. 103; [2003] 2 W.L.R. 631; [2003] 4 All E.R. 342; [2003] 1 FLR 139; [2002] 3 F.C.R. 673; [2003] Fam. Law 16; [2002] EWCA Civ 1685, referred to.

(7) Miller v. Miller, [2006] 2 A.C. 618; [2006] 2 W.L.R. 1283; [2006] 3 All E.R. 1; [2006] F.C.R. 213; [2006] 1 FLR 1186; [2006] UKHL 24, dicta of Lord Nicholls of Birkenhead applied.

(8) Rossi v. Rossi, [2006] 3 F.C.R. 271; [2007] 1 FLR 790; [2006] EWHC 1482 (Fam), considered.

(9) Sorrell v. Sorrell, [2005] EWHC 1717 (Fam), referred to.

(10) White v. White, [1998] 4 All E.R. 659; [1998] 2 FLR 510; on appeal, [2001] 1 A.C. 596; [2000] 3 W.L.R. 1571; [2001] 1 All E.R. 1; [2000] 2 FLR 981; [2000] 3 F.C.R. 555, dicta of Lord Nicholls of Birkenhead applied.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.19: The relevant terms of this section are set out at para. 12.

s.21: The relevant terms of this section are set out at para. 12.

Family Law-financial provision-matrimonial property-assets to be divided those produced by of parties” common endeavour-later-acquired assets not matrimonial property unless traceable to matrimonial property-earnings after separation not matrimonial property unless attributable to period of marriage

Family Law-financial provision-equality-after providing for needs, court to aim for equality-no discrimination between roles in accordance with modern view of marriage as presumed union of equals-court to depart from equal distribution only in exceptional circumstances to extent justified and necessary for fairness-special contribution from one spouse constitutes exceptional circumstance-exceptional financial contribution is special contribution

The appellant/wife appealed against an order in the Grand Court upon an application for ancillary relief brought by the wife against the respondent/husband.

The parties had been married for 22 years, during which time they had four children, the three eldest now being over 16. The husband had enjoyed an increasingly successful career as an accountant from the time he moved to the Cayman Islands in 1973, starting as an articled clerk and progressing with increasing responsibility. At the time of the separation, he had become one of the most successful accountants in the Islands and managing partner of Deloitte & Touche, one of the largest international firms. The wife had worked as a secretary until 1995, when she left employment in order to take care of their properties, visit the children at school abroad, and run the household. They had by this time acquired over US$20m. of assets between them. The marriage broke down suddenly in 2002 when the husband admitted he was having an affair and wanted a divorce. He moved out of the matrimonial home and later out of the complex altogether. The wife continued to live in the matrimonial home. She petitioned for divorce and sought financial provision.

The Grand Court (Levers, J.) made financial provision (in proceedings reported at 2006 CILR 1) distributing the parties” matrimonial property in proportions of 55% to the husband and 45% to the wife, on the ground that the husband had made a special contribution to the marriage in the

form of an exceptional financial contribution. The court declined to treat certain assets held by the husband, including the bank account into which his post-separation earnings were paid, as matrimonial property. As such, the wife would not be entitled to a share in these assets.

On appeal, the wife submitted that the Grand Court had erred (a) in failing to characterize certain assets, including the husband”s post-separation earnings, as matrimonial property; (b) in failing to divide the matrimonial property equally; and (c) in finding a special contribution on the part of the husband.

Held, varying the financial provision in part but affirming the 55:45 distribution, in the husband”s favour, of the matrimonial property:

(1) When ordering the distribution of matrimonial property pursuant to s.21(b) of the Matrimonial Causes Law, the court first had to determine which of the parties” assets were matrimonial property. Property which was the product of their common endeavour, including assets acquired with the proceeds or income of such property, would be matrimonial property. Conversely, the earnings of a spouse after the date of separation which could not be attributed to the period of marriage would not be considered matrimonial property. The wife would therefore not be entitled to a share in the current account into which the husband”s post-separation earnings had been paid. Nor would she be entitled to a share in the value of his two Porsche cars or his horses as it could not be shown that he had purchased them with the proceeds of matrimonial property. However, she would be entitled to a share in the following assets, which were found to be matrimonial property: the pension fund; the potential profits from a development in which the husband had invested matrimonial money; and a boat purchased by the husband with the proceeds of other matrimonial property (para. 12; para. 15; para. 20; paras. 22–27).

(2) In exercising its broad discretion under ss. 19 and 21 of the Matrimonial Causes Law (2005 Revision) in the distribution of matrimonial property, the court would act in accordance with the modern view that a marriage was a presumed union of equals, and that there should be no bias or discrimination as to the nature of the role played by each spouse, e.g. breadwinner or homemaker. Therefore, having provided for the needs of the parties (including the needs of any children), the court would aim for equality and opt for an unequal distribution only to the extent that inequality of distribution was required in exceptional circumstances in order to achieve a fair result. A special contribution to the marriage by one spouse would constitute an exceptional circumstance justifying departure from equality. Since in this case the husband had made a dramatically large contribution to the wealth of the parties, there was no reason to overturn the finding that a special contribution had been made, nor to alter the 55:45 distribution, which was equitable. The court would therefore vary the financial provision with regard to the matrimonial property available for distribution, but would not vary the 55:45 distribution, in the

husband”s favour, of that property (paras. 29–37; paras. 42–45; paras. 55–69).

1 ZACCA, P.: Mrs. Wight (the wife) appeals against an order made by Levers, J. in the Grand Court upon an application for ancillary relief brought by the wife against Mr. Wight (the husband). The judge found that the parties” assets amounted to $16,479,773. The judge”s order was that in full settlement of all her claims the husband should pay to the wife a lump sum of $7,415,898 (45% of the parties” assets) together with 45% of the proceeds of Sunrise Landing and Frank Sound properties, which is deferred.

2 In arriving at this order the judge stated (2006 CILR 1, at paras. 76–77):

‘Fairness demands that I depart from equality and that of the assets

which I have held to be matrimonial assets, a fair division would be by way of a split of 45% to the wife and 55% to the husband . . . There are enough liquid assets for the wife to receive a lump sum immediately. In monetary terms, the wife will therefore receive US$7,415,898 together with 45% of the proceeds of Sunrise Landing and Frank Sound Properties which is deferred.’

3 In departing from equality Levers, J. held that there was a ‘special contribution’ on the part of the husband.

4 At the time of the hearing in the Grand Court, the husband was 54 years old and the wife 48 years old. The husband was born in Guyana and the wife in Trinidad. The wife came to the Cayman Islands at the age of 10. She was educated in England and returned to live permanently in the Cayman Islands. She gained employment as a secretary with the Royal Cayman Islands Police Force. In 1979 she returned to England and obtained employment there.

5 The husband came to the Cayman Islands in 1973 at the age of 22. He became an articled clerk with Rawlinson & Hunter. At that time, Deloitte Haskins & Sells, who were associated with Rawlinson Hunter Butterfield & Co., established a joint office in the Cayman Islands, and in 1977 the husband became the manager of the Cayman joint offices of Deloitte and Rawlinson & Hunter.

6 He and a secretary were the only employees. In 1980, the husband became the resident equity partner of Deloitte and its associated firm of Rawlinson & Hunter in the Cayman Islands. More will be said about the husband”s progress later. The parties met in 1978 and they were married on March 1st, 1980 in Grand Cayman. There are four children of the marriage, of whom only Claire, born on January 12th, 1992, is a relevant child of the marriage in so far as the application is concerned.

7 After the marriage, the wife continued working until 1995. From 1980 to 1985, she worked and also cared for the home without any help. In 1985 when the first child, Matthew, was born, the parties hired a live-in helper. That continued until 1995, when in addition to the live-in helper, the parties also had a maid service, a gardener and...